Separation agreements. An alternative to divorce?

If you are thinking about getting divorced, or dissolving your civil partnership, but haven’t yet filed the papers, you can get a separation agreement drawn up. This sets out who will pay the rent or mortgage and bills, until you decide whether to proceed with your divorce or dissolution.

What is a separation agreement?

A separation agreement is useful if you haven’t yet made a final decision on whether to divorce, or if you cannot divorce yet. It’s a written agreement that, typically, sets out your financial arrangements while you are separated. It can cover a range of areas, including:

• Who pays the mortgage or rent, and household bills
• Who continues to live in the family home and / or what happens if it’s sold
• What happens to any debts, such as loans or overdrafts
• What happens to any savings, investments and other financial assets
• What happens to any items such as cars or furniture, especially those bought jointly
• Whether maintenance is paid to support one of you and / or any children
• Childcare arrangements: who the children live with and parental access

If you are planning to make your separation permanent, the separation agreement should ideally set out the final financial agreement that will be presented to the court when the divorce finally goes through.

Pros and cons of a separation agreement

Pros:

• It shows that you both consider the relationship to have ended and the date that it ended
• You agree that you don’t have to live together, so your ex-husband / wife cannot allege later on that you have deserted them (and vice versa)
• It is flexible – you can decide what you would like to include 
• It gives you both clarity and certainty – you will both know where you stand 
• If you stick to it, an agreement can take the heat out of the breakdown of the relationship
• They are not technically legally binding, however, separation agreements which have been properly and fairly negotiated, will be upheld by the court if they are later challenged

Cons

• It is not easy to enforce
• It can only be changed if both of you agree to the changes
• A court might disregard some or all of its contents if you go on to divorce – it’s not the final word

Is a separation agreement legally enforceable?

Technically, separation agreements are not legally enforceable. Family Solicitor and Associate at Frettens, Andrew Stynes, explains “Whilst the agreement is not legally enforceable, if you have both been open and honest about your finances and have each taken independent legal advice about the agreement, it could be hard for you to argue in court that you should not have to stick to it. However, a court would not allow either of you to be bound by a term in the separation agreement that said, for example, that you could never go to court for maintenance or child support.”

What is Legal Separation?

A legal separation allows you to live apart, without divorcing or ending a civil partnership. You can ask for a legal separation for the same reasons you could file for a divorce, for example adultery or unreasonable behaviour. However, you don’t need to show that the marriage has broken down irretrievably.

You may want a legal separation if:

• You have religious reasons against divorce 
• You’ve been married less than a year 
• You want time and space to work out if you want to end the marriage

Our Family Team are happy to discuss any issues that this raises for you. If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 and Andrew or a member of the team will be happy to chat about your situation and your particular requirements.